Enforcement of Order
26.—(1) Every enforcing authority must enforce the provisions of this Order and any regulations made under it in relation to premises for which it is the enforcing authority and for that purpose, except where a fire inspector or other person authorised by the Secretary of State is the enforcing authority, may appoint inspectors.
(2) In performing the duty imposed by paragraph (1), the enforcing authority must have regard to such guidance as the Secretary of State may give it.
(3) A fire and rescue authority has power to arrange with the Health and Safety Commission or the Office of Rail Regulation for such of the authority’s functions under this Order as may be specified in the arrangements to be performed on its behalf by the Health and Safety Executive or the Office of Rail Regulation, as the case may be, (with or without payment) in relation to any particular workplace.
What the Guidance says:
It is the duty of the enforcing authority to enforce this Order and regulations made
under it. In doing so they must have due regard to any guidance the Secretary of
State may give. Enforcing authorities, may, and it is expected, will appoint inspectors.
Appointments should be made in writing and be in a form the inspector can produce to
demonstrate evidence of his or her authority (see article 27).
The Enforcement Concordat (and Compliance Code from April 2008, subject to
Parliamentary agreement) sets out the principles of good enforcement policy and
procedure – many enforcing authorities have signed up to the Enforcement Concordat.
Enforcing authorities are strongly encouraged to enforce in accordance with the
principles of the Enforcement Concordat.
Fire and Rescue Authorities have the power to arrange with the Health and Safety
Commission or the Office of Rail Regulation (following the transfer of safety functions
in relation to railways under the Railways Act 2005) for such of the authority’s functions
under this Order as may be specified in the arrangements to be performed on its behalf
by the Health and Safety Executive or the Office of Rail Regulation in relation to any
particular workplace.
There are specific powers contained in section 101 of the Local Government Act 1972
which make specific provision for one local authority to arrange with another local
authority for the second authority to exercise the functions of the first authority. This may be useful to enforcing authorities where enforcement at sports grounds withregulated stands means that there are two enforcing authorities. There may be other
enforcement areas where this provision is helpful to make effective use of resources.
Enforcing authorities wishing to explore this possibility should consult their own
lawyers in the first instance.
The auditing and inspection of premises is an implicit element of the duty to
enforce. All enforcing authorities are expected to have, or to put in place, reasonable
programmes of auditing and inspection as a key part of their enforcement programme.
Guidance for Fire and Rescue Authorities is in IRMP guidance note 4.
For the avoidance of doubt the term ‘Audit ’ is intended to mean both the initial and
any subsequent audit and inspection of a premises.
As a matter of good management, Fire and Rescue Authorities already target
enforcement activity at premises where people are at greatest risk from fire.
Enforcement activity will include audits of compliance with the Order. In setting their
audit and inspection frequency programmes, enforcing authorities should also consider
taking into account the value of good fire safety management.
As with the Fire Precautions Act 1971, enforcement action is taken at the discretion
of the enforcing authority. The Order does not place enforcing authorities under
a specific, express duty to issue alterations, enforcement or prohibition notices. It
gives them powers to do so where they deem necessary. This is commensurate with
application of good practice and the Enforcement Concordat whereby it is expected
that, except in the most serious of cases or where less formal action has failed to resolve
issues of non-compliance, use of formal notices will be the option of last resort.
Enforcing Authorities must be mindful of the ethos of the Enforcement Concordat
and where the risk to relevant persons is not significant and the responsible person is
willing to comply, agreed action plans may be preferable to formal enforcement notice
procedures.
Where other methods have failed to achieve compliance or where serious or deliberate
breaches of law have put people at serious risk, enforcing authorities should continue
to use their discretion in deciding whether to seek a prosecution.
